The
last Los Angeles County Bar Assn. plebiscite in connection with judicial
contests took place in 1972, 52 years after the first one occurred. By 1972,
the County Bar, which earlier had taken considerable pride in its process, had
soured on it. That stemmed largely from the outcome of the election in 1970 in
which voters turned out of office Los Angeles Superior Court Judge Alfred Gitelson,
who had been staunchly supported by the County Bar.

Gitelson
drew ire—even an aborted assassination plot—based on his 103-page decision
ordering the Los Angeles City School District to achieve racial balance in
local schools by September, 1971. Although the order did not mention busing, it
was widely perceived by the public, as well as the school district, as
necessarily entailing forced busing as the only practical means of reaching the
result. The school district, which appealed the judgment, proclaimed that
200,000 students would be affected.

LACBA
sent ballots prior to the June 2 primary election to all of the county’s
lawyers and judges. Less than half returned them. Of those who did, 3,311 voted
for Gitelson, 780 for Playa del Rey attorney William Kennedy, with other votes
spread among attorneys J. Wallace McKnight of Woodland Hills, Dino Fulgoni of
Los Angeles (later a Superior Court judge), and Ernest Duncan of Alhambra.

Gitelson’s
showing in the plebiscite entitled him, under LACBA rules, to the association’s
endorsement. That endorsement, however, was hardly enough to prevent a run-off
with Kennedy, an obscure lawyer whose backers could only have predicated their
support of him on the fact that he was opposing the “busing judge.”

The
incumbent did not fare at all badly in the primary, given that he had four
opponents. He bagged 44.08 percent of the vote, with 615,672 ballots cast for
him, and Kennedy attained 19.19 percent, or 268,046 votes.

On
Oct. 15, as the run-off approached, LACBA President Sharp Whitmore (since
deceased) publicly reiterated the group’s endorsement of Gitelson, explaining
that it reflected a concern “for the preservation of our system of justice in
these times of violence and uncertainty.”

This
ad appeared in newspapers on Nov. 1, the Sunday preceding the election:

In
the Nov. 3 general election, all the anti-busing sentiment that had manifested
itself in the primary, and then some, coalesced, resulting in Gitelson, 64, a
13-year veteran of the bench, attaining only 44 percent of the vote. He
received 815,530 votes; Kennedy, 48, got 1,020,963.

At left is a photo I took of Gitelson, in chambers, on his final
day of office, as he removed his judicial robe for the last time:

Gitelson died in
1975.

Following the election of Kennedy,
LACBA issued a statement signed by Whitmore and LACBA President-Elect Stuart
Kadison (also now deceased) which, by necessary inference, constituted an
utterance of “phooey!” as to the outcome of the election. It said, in part:

“[O]ur
state system involves the right of the public to determine, in a public
election, who among our incumbent judges should be continued in office.

“If
our system is to work properly, this right of the public should be exercised with
a realization of the responsibilities that accompany it.

“Some
judges, fearful of not being returned to office, could be motivated to decide
cases on bases other than those required by the law and the facts. Some judges
may be reluctant to decide unpopular or emotion charged cases on the law and
the facts for fear of jeopardizing their places on the bench.”

“In
connection with the primary and general election in 1970 the Association
conducted a plebiscite, held a press conference to publicize the results,
mailed the results to the news media and sent a letter to each member of the
Association urging membership activity on behalf of the single candidate
endorsed. That candidate was defeated.”

Whitmore
noted that the cost to the County Bar of conducting the 1970 plebiscite “was
well over $3,000, without including the lawyer and staff time devoted to it,”
yet news coverage of the results was scant.

Taking
an overall view, he lamented that “[t]here has been no close correlation
between plebiscite results and the way the public votes.”

Indeed,
two years earlier, voters had spurned LACBA’s call for the election of attorney
Malcolm Mackey to the Los Angeles Municipal Court rather than reelecting the
unconventional Noel Cannon. Two years before that, the electorate ignored the
group’s urging that Los Angeles Municipal Court Judge George Dell be chosen
over incumbent Thomas Yager in a Superior Court race.

Through
the years, starting in 1920, the electorate did vote in accordance with County
Bar recommendations most of the time. But most of the races were not hotly
contested, and where they were, the bar association’s success rate was low.

LACBA’s Committee on Judicial Appointments
in December 1975 submitted a report to the Board of Trustees. Finding that the
plebiscites had not had an appreciable impact on the outcome of judicial
contests, it urged experimentation with two other approaches: judicial
evaluations by committee and the taking of polls. It recommended that a
committee be set up to evaluate judicial candidates in the 1976 primary
election, and that another committee be established to conduct a poll with
respect to Superior Court judges who were up for election in 1978.

The
Special Committee on Judicial Evaluation on May 12, 1978 submitted a report to
the Board of Trustees in which it rated candidates for five Superior Court
offices. The report was signed by the chairman of the committee, Leonard
Janofsky (now deceased) of Paul, Hastings, Janofsky & Walker, a former
president of LACBA and of the State Bar, who was later to become president of
the American Bar Assn. Committee members included a future presiding judge of
the Los Angeles Superior Court, Victor Chavez, and a future member of the Court
of Appeal, William Masterson.

Here
were the evaluations of Superior Court candidates that first year:

Office No. 40: ROBERT
M. TAKASUGI, Incumbent, Judge of the Superior Court, Well Qualified; NATHAN
AXEL, Judge of the Municipal Court, Not Qualified; DAVID J. AISENSON, Judge of
the Municipal Court, Qualified.

The
report explained the “not qualified” rating of Kennedy, the man who had
replaced Gitelson, by saying:

“[T]he
Committee evaluated him as ‘Not Qualified’ because he is seriously lacking in
industry and diligence. Further, the Committee was informed by many attorneys
and judges that he often takes the Bench late and adjourns court early and does
not carry a full work load.”

The
County Bar was now only evaluating, not endorsing. Nonetheless, inherent in the
report was the direction to voters: retain Gumpert, dump Kennedy.

Both
Gumpert and Kennedy lost. Why Gumpert? The issue against him raised by Schwartz
in the primary and the general election was his age, 81.

The
denunciation of Kennedy by the County Bar committee could well have been
instrumental in bringing about his defeat.

Takasugi
neither won nor lost the contest. He drew 45 percent of the vote in the June 8
primary—which was quite a feat given that he no longer qualified, having been
recently nominated to and confirmed as a judge of the U.S. District Court for
the Central District of California. In August, 1978, Takasugi joined with
Aisenson, who had attained 37 percent of the vote in the primary, in bringing
an action to have Takasugi’s name removed from the Nov. 2 general election ballot.
The upshot was that Aisenson and Axel faced off in the general election and
Aisenson won—proving to be a disaster as a Superior Court judge.

The
reaction to the committee’s work in the rating of Superior Court candidates in
the primary was favorable and the committee proceeded to rate the 10 candidates
in the Municipal Court races on the November ballots (including one candidate
who was dead).

In
his “The President’s Page” message in the January, 1977 issue of the Los
Angeles Bar Bulletin, Jack Quinn commented that the “Committee’s efforts have
been widely heralded as one of the most comprehensive and constructive ever
performed in connection with judicial elections and of which the Association
can and should take great pride.”

In
light of general satisfaction with the new approach, no experiment took place
in 1978 with a “poll.” The method inaugurated in 1976 has endured, although the
thoroughness of the explanations of “not qualified” ratings, regrettably, has
not.

LACBA’s immediate past president, John
J. Collins, told me the association “does a super job” of evaluating
candidates. “Where we fail,” he acknowledged, “is getting our ratings out to
the public in general.”

Collins,
of the law firm of Collins, Collins, Muir & Stewart, remarked:

“I
wish we did have an ability, like a labor union, to have a mass mailing.”

The
advantage of a review of the candidates’ qualifications by a committee is that
the members “dig” for information. If the County Bar held a plebiscite, he
said, there would be some value in it, but he asked, rhetorically, “How many
people, what percentage, would have an intelligent opinion?”

LACBA’s
current president, Edith Matthai of Robie & Matthai, expressed doubt that
it would be feasible these days to hold a plebiscite, given the size of the bar
in Los AngelesCounty.
“I can’t even imagine what the costs would be now,” she said.

The
committee that evaluates candidates, Matthai said, is “one of the hardest
working committees of the bar.” It seeks input from persons with “different
perspectives,” obtains a “good cross section of opinion,” and “cross checks”
information, she explained.

“The
work that is done is accurate,” she maintained.

While
consideration has been given to altering the approach to judicial elections,
Matthai said, “the preliminary determination is that we’re not going to.”